Harborside v. Hershey’s Lawsuit - MJBizDaily
Transcript of Harborside v. Hershey’s Lawsuit - MJBizDaily
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COMPLAINT FOR DECLARATORY RELIEF; Case No:
Henry G. Wykowski (State Bar No. 068255) Andrew F. Scher (State Bar No. 140571) HENRY G. WYKOWSKI & ASSOCIATES 235 Montgomery Street, Suite 657 San Francisco, CA 94104 Telephone: (415) 788-4545 Facsimile: (415) 788-4546
Attorneys for Plaintiff PATIENTS MUTUAL ASSISTANCE COLLECTIVE CORPORATION, dba. HARBORSIDE HEALTH CENTER
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
PATIENTS MUTUAL ASSISTANCE COLLECTIVE CORPORATION, dba HARBORSIDE HEALTH CENTER
Plaintiff,
vs.
THE HERSHEY COMPANY
and
HERSHEY CHOCOLATE &
CONFECTIONARY CORPORATION,
Defendants.
CASE NO.
COMPLAINT FOR DECLARATORY RELIEF
Complaint filed:
For its complaint, Plaintiff Patients Mutual Assistance Collective Corporation dba Harborside
Health Center (“Harborside”) by and through its attorneys avers as follows:
THE PARTIES
1. Harborside is a corporation organized under the laws of the State of California, with its
principal place of business in Oakland, California, which is within the Northern District of California.
Harborside is, and was at all times herein mentioned, qualified to do business in California. Harborside
is a medical cannabis collective, operating under permit from the City of Oakland, and in full
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COMPLAINT FOR DECLARATORY RELIEF; Case No:
compliance with California law.
2. Defendant The Hershey Company is a corporation organized under the laws of the State
of Delaware, and having a principal place of business at 100 Crystal A Drive, Hershey, Pennsylvania
17033. The Hershey Company manufactures and sells chocolate and confectionary products.
3. Defendant Hershey Chocolate & Confectionary Corporation is a wholly owned and
controlled subsidiary of Defendant, The Hershey Company, and a corporation organized and existing
under the laws of the State of Delaware with a principal place of business at 4860 Robb Street, Suite
204, Wheat Ridge, Colorado 80033. On information and belief, Hershey Chocolate & Confectionary
Corporation manages the trademarks held by The Hershey Company.
NATURE OF ACTION
4. This is an action for declaratory and injunctive relief pursuant to 28 U.S.C. § 2201 and
2202. Plaintiff seeks (i) a declaratory judgment that by selling a medical cannabis product called “Jolly
Meds”, which was manufactured by a third party, without realizing that Hershey’s claimed the product
infringed its trademarks, and by subsequently ceasing to sell the product promptly upon Hershey’s
request, Harborside did not act “willfully”; (ii) that as a result of the above, Harborside cannot be held
liable to Hershey for damages; (iii) that as a result of the above, Hershey is enjoined from suing or
threatening to sue Harborside for trademark infringement; and (iv) that Hershey has no basis to require
that Harborside “will never in the future advertise, sell, manufacture, cause to be manufactured or
distribute any products or services bearing or using Hershey’s Trademarks… including but not limited
to” the word marks “BLISS”, “CAREFREE”, “DAIRY MILK”, “HUGS”, “ICE CUBES”, “KISSES”,
“MILKSHAKE”, “POT OF GOLD”, “ROYAL DARK”, “SIMPLE PLEASURES”, “SPECIAL
DARK”, “SYMPHONY”, and “ZERO”.
VENUE AND JURISDICTION
5. Jurisdiction is proper in this court because this litigation arises under federal law, namely
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COMPLAINT FOR DECLARATORY RELIEF; Case No:
17 U.S.C. § 1051 et seq. (Lanham Act). The Court has jurisdiction over this action under 28 U.S.C. §
1331 (federal question), 28 U.S.C. § 1338(a) (trademarks), and 28 U.S.C. § 2201 (Declaratory Judgment
Act).
6. This Court has personal jurisdiction over Defendants because, on information and belief,
Defendants conduct business in the State of California and within this district, including the advertising
and sale of its products to California residents, and including the monitoring, enforcement and licensing
of trademark rights, and threats of litigation against others, including Plaintiff, within this State and
judicial district.
7. Venue is proper in this district under 28 U.S.C. §§ 1391(b) and 1391(c).
8. Intradistrict Assignment. This action arose in Alameda County. Assignment would be
proper in the San Francisco or Oakland divisions of the Court pursuant to Civil L.R. 3-2(c).
9. An actual case or controversy has arisen between the parties. Hershey has threatened
litigation against Harborside, and has asserted that Harborside has infringed a trademark owned by
Hershey and therefore is liable to Hershey for monetary damages in the form of disgorgement of profits.
These statements threaten injury to Harborside.
GENERAL ALLEGATIONS
I. Harborside’s Business
10. Harborside was founded in 2006. It is believed to be the largest medical cannabis
dispensary in the world.
11. Harborside annually purchases over 250 types of edible products that are made from or
contain medicinal cannabis, from third-party manufacturers. Many of these products have unusual,
humorous or whimsical names. Harborside does not does not have any role in choosing the names of
the third-party edible products that are carried in its dispensary.
12. One of the third-party medicinal cannabis products (a sweet lozenge) that Harborside
carried in its dispensary bore the name “Jolly Meds”. Harborside had no role in choosing the name or
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COMPLAINT FOR DECLARATORY RELIEF; Case No:
the packaging of this product.
II. The Present Dispute
13. On or after April 21, 2017, Harborside received a letter from Amy Wright, an attorney at
Taft Stettinius & Hollister LLP (“Taft”), counsel to The Hershey Company and its trademark
management subsidiary, Hershey Chocolate & Confectionary Corporation (collectively “Hershey”). A
copy of that letter is attached as Exhibit A hereto. Ms. Wright’s letter informed that Hershey is the
exclusive United States licensee of the “JOLLY RANCHER” trademark, which is used by Hershey in
connection with the sale of candy and various other products. The letter further informed that it had
come to Hershey’s attention that Harborside was selling the “Jolly Meds” products on its website. It
further informed, in short, that the “Jolly Meds” products infringed Hershey’s “JOLLY RANCHER”
trademark. The April 21, 2017 letter demanded, inter alia, that Harborside cease and desist from all use
of the JOLLY RANCHER trademark.
14. Ms. Wright’s letter was the first time Harborside became aware that anyone claimed
“Jolly Meds” was an alleged infringement of the JOLLY RANCHER trademark.
15. After receiving Ms. Wright’s letter, Harborside investigated the claims made by Hershey
therein. On May 24, 2017, Harborside’s trademark counsel, Mary Shapiro, wrote to Ms. Wright as
follows: “Our client respects the intellectual property rights of others, and wishes to resolve this matter
amicably. Harborside confirms that it has removed the ‘Jolly Meds’ products, as labeled, from its online
and retail stores, and agrees not to sell any lozenges using or incorporating the JOLLY RANCHER mark
or the component “JOLLY.” To the extent that Harborside is aware that products presented to it by third
parties are being offered under marks owned by Hershey or its subsidiaries, Harborside will not use such
intellectual property…. Harborside is promptly agreeing to cooperate to the extent possible and has: (1)
removed the Jolly Meds products from their online and retail stores. Rather than surrender such
products, Harborside is considering an option to relabel the product packaging. (2) notified Jolly Meds
of the infringement claim; (3) agreed not so sell any lozenges using ‘JOLLY’ on labels and packaging.”
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COMPLAINT FOR DECLARATORY RELIEF; Case No:
A copy of that letter is attached as Exhibit B hereto.
16. On June 21, 2017, Harborside’s counsel, Ms. Shapiro, sent a further letter to Ms. Wright
informing that Harborside has relabeled the allegedly infringing products and destroyed all the
infringing labels. The letter attached a declaration from Harborside’s director of compliance confirming
that Harborside no longer possessed any items or labels bearing the “Jolly Meds” mark. A copy of this
letter, with the Declaration, is attached hereto as Exhibit C.
17. Despite Harborside’s correspondence and its prompt compliance with Hershey’s cease
and desist request, attorneys from the Taft firm have continued to make further demands on Harborside.
One email sent by Taft read, in pertinent part: “While we appreciate that you did not manufacture the
infringing product, your client’s advertisement and sale of the product in commerce makes your client
similarly liable for trademark infringement…” Another email from Taft read: “While we understand
that your client did not intend to infringe on our client’s famous mark, your client’s lack of knowledge
of our client’s federally registered and famous mark is not a defense.”
18. On October 16, 2017, Ms. Wright sent Harborside’s counsel a draft document entitled
“JOLLY RANCHER Trademark Settlement Agreement”. In it, and in the accompanying letter,
Hershey’s counsel demanded that Harborside pay $20,000.00 “to compensate for its unauthorized past
use” of the JOLLY RANCHER mark. Hershey’s counsel also demanded that Harborside agree it “will
never in the future advertise, sell, manufacture, cause to be manufactured or distribute any products or
services bearing or using Hershey’s Trademarks… including but not limited to” the word marks
“BLISS”, “CAREFREE”, “DAIRY MILK”, “HUGS”, “ICE CUBES”, “KISSES”, “MILKSHAKE”,
“POT OF GOLD”, “ROYAL DARK”, “SIMPLE PLEASURES”, “SPECIAL DARK”, “SYMPHONY”,
and “ZERO”. A copy of this letter, with attached draft settlement agreement, is attached hereto as
Exhibit D.
19. On November 27, 2017, another Taft attorney, Jonathan Polak, wrote to Harborside’s
counsel as follows: “My work for Hershey primarily relates to litigation, and this matter has reached my
desk because of its current status. This letter is Hershey’s last attempt to reach a resolution with you
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COMPLAINT FOR DECLARATORY RELIEF; Case No:
concerning your client’s infringing and unauthorized use of the JOLLY RANCHER trademark.
Although your client has removed the Products referenced in our original correspondence from their
website, you have not responded to our repeated requests regarding the attached Settlement Agreement.”
A copy of this letter is attached hereto as Exhibit E.
CLAIMS FOR RELIEF
CLAIM ONE
(Declaratory Judgment, 28 U.S.C. § 2201 et seq.)
20. Harborside incorporates by reference the allegations contained in paragraphs 1 through
19, inclusive.
21. Hershey has claimed that that by selling a medical cannabis product called “Jolly Meds”,
which was manufactured by a third party, without realizing that Hershey’s claimed the product infringed
its trademarks, and by subsequently ceasing to sell the product promptly upon Hershey’s request,
Harborside is guilty of trademark infringement, and has threatened to bring a lawsuit against Harborside
to recover damages on this basis.
22. An actual, present and justiciable controversy has arisen between Harborside and
Hershey concerning Harborside’s actions, which were not “willful” in any way and therefore do not
form the basis for a recovery of monetary damages by Hershey.
23. Harborside seeks declaratory judgment from this Court that (i) by selling a medical
cannabis product called “Jolly Meds”, which was manufactured by a third party, without realizing that
Hershey’s claimed the product infringed its trademarks, and by subsequently ceasing to sell the product
promptly upon Hershey’s request, Harborside did not act “willfully”; (ii) that as a result of the above,
Harborside cannot be held liable to Hershey for damages; (iii) that as a result of the above, Hershey is
enjoined from suing or threatening to sue Harborside for trademark infringement; and (iv) that Hershey
has no basis to require that Harborside “will never in the future advertise, sell, manufacture, cause to be
manufactured or distribute any products or services bearing or using Hershey’s Trademarks… including
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COMPLAINT FOR DECLARATORY RELIEF; Case No:
but not limited to” the word marks “BLISS”, “CAREFREE”, “DAIRY MILK”, “HUGS”, “ICE
CUBES”, “KISSES”, “MILKSHAKE”, “POT OF GOLD”, “ROYAL DARK”, “SIMPLE
PLEASURES”, “SPECIAL DARK”, “SYMPHONY”, and “ZERO”.
PRAYER FOR RELIEF
WHEREFORE, Harborside respectfully requests that the Court:
1. Enter judgment according to the declaratory relief sought;
2. Award Harborside its reasonable attorneys’ fees and costs in this action;
3. Enter such other further relief to which Harborside may be entitled as a matter of law or
equity, or which the Court determines to be just and proper.
DEMAND FOR JURY TRIAL
Pursuant to Federal Rule of Civil Procedure 38 and Civil Local Rule 3-6, Harborside hereby
demands a jury trial on all issues so triable.
Dated: December 18, 2017 HENRY G. WYKOWSKI AND ASSOCIATES
By: S/ Henry G. Wykowski Henry G. Wykowski, Esq. Attorneys for Plaintiff Patients Mutual Assistance Collective Corporation dba Harborside Health Center
Case 4:17-cv-07175-KAW Document 1 Filed 12/18/17 Page 7 of 8
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COMPLAINT FOR DECLARATORY RELIEF; Case No:
Case 4:17-cv-07175-KAW Document 1 Filed 12/18/17 Page 8 of 8
EvokeLaw,PC244CaliforniaSt.,Suite507
SanFrancisco,[email protected]•415.398.3141
Trademark&CopyrightLaw
May 24, 2017 VIA EMAIL ([email protected]); CONFIRMATION BY MAIL Ms. Amy L. Wright Taft Stettinius & Hollister LLP One Indiana Square, Suite 3500 Indianapolis, IN 46204
Re: Harborside JOLLY RANCHER Trademark
Dear Ms. Wright:
We write on behalf of Patients Mutual Assistance Collective Corp. d/b/a Harborside (“Harborside”) regarding your letters dated April 21, 2017 and May 8, 2017, which were sent to Harborside on behalf of Hershey Chocolate & Confectionery Corporation (“Hershey”) alleging infringement of the JOLLY RANCHER trademark.
Our client respects the intellectual property rights of others, and wishes to resolve this matter amicably. Harborside confirms that it has removed the “Jolly Meds” products, as labeled, from its online and retail stores, and agrees not to sell any lozenges using or incorporating the JOLLY RANCHER mark or the component “JOLLY.” To the extent that Harborside is aware that products presented to it by third parties are being offered under marks owned by Hershey or its subsidiaries, Harborside will not use such intellectual property. However, please note that Harborside is not aware of the extent of Hershey’s trademark portfolio and must be excused for any inadvertent use of such marks, absent notification by Hershey.
Harborside is promptly agreeing to cooperate to the extent possible and has:
(1) Removed the Jolly Meds products from their online and retail stores;
Rather than surrender such products, Harborside is considering an option to re-label the product packaging.
(2) Notified Jolly Meds of the infringement claim;
(3) Agreed not sell any lozenges using “JOLLY” on labels and packaging.
However, Harborside will not release information concerning purchases. Hershey will need to work with Jolly Meds to address the other issues raised in your correspondence, particularly records pertaining to the procurement and sale of the products at issue. Under no
Case 4:17-cv-07175-KAW Document 1-1 Filed 12/18/17 Page 2 of 33
Ms. Amy L. Wright Taft Stettinius & Hollister LLP
May 24, 2017 Page 2
circumstances will Harborside disclose the names of patients who purchased the products at issue, as this information is protected health information under HIPAA.
As this matter is also of great concern to Harborside, please promptly confirm receipt of this communication. Nothing in this letter should be construed as an admission of liability, wrongdoing, or as a waiver of Harborside’s rights or defenses, all of which are expressly reserved. Please contact us if you have any questions.
Sincerely,
Mary L. Shapiro
Case 4:17-cv-07175-KAW Document 1-1 Filed 12/18/17 Page 3 of 33
21651318.1
JONATHAN G. POLAK 317-713-3500 [email protected]
November 27, 2017
Via Electronic Mail [email protected] Andrew F. Scher Henry G. Wykowski & Associates
Re: Patients Mutual Assistance Collective Corporation d/b/a Harborside Health Center’s Unauthorized Use of the JOLLY RANCHER® Trademark Ref. No. HER19-00700
Dear Mr. Scher:
As you are aware, our firm represents The Hershey Company and its trademark management subsidiary, Hershey Chocolate & Confectionary Corporation, in their interests related to the federally registered JOLLY RANCHER® trademark. You have received correspondence from my partner, Amy Wright, and myself in the past.
My work for Hershey primarily relates to litigation, and this matter has reached my desk because of its current status. This letter is Hershey's last attempt to reach a resolution with you concerning your client’s infringing and unauthorized use of the JOLLY RANCHER® trademark. Although your client has removed the Products referenced in our original correspondence from their website, you have not responded to our repeated requests regarding the attached Settlement Agreement.
I do not see litigation as an efficient use of your resources or Hershey's; however, Hershey is prepared to undertake that expense if a resolution is not achieved. Our requirements are simple. Your client needs to immediately provide us with a signed copy of the enclosed Settlement Agreement, along with a check for the entire Twenty Thousand Dollars ($20,000.00) payment demand. This offer shall remain open for acceptance through December 6, 2017 after which time it should be considered withdrawn.
At this point, Hershey is willing to resolve this matter amicably, without litigation, provided you immediately provide us with a signed copy of the enclosed Settlement Agreement. I raise all of this so you understand the seriousness of Hershey's position and commitment to protecting its trademarks. If you reject that offer, Hershey will do what it must to protect its trademarks.
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21651318.1
Nothing in this letter should be construed as a waiver, relinquishment or election of rights or remedies by Hershey, which expressly reserves all rights and remedies under all applicable federal and state laws.
Very truly yours,
Jonathan G. Polak JGP/ebl Attachment
Case 4:17-cv-07175-KAW Document 1-1 Filed 12/18/17 Page 12 of 33
1 21312292.1
JOLLY RANCHER® Trademark
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (hereinafter, the “Agreement”) is made and entered as of
the date first written below (the “Effective Date”), between The Hershey Company, a Delaware corporation
with a business address of 100 Crystal A Drive, Hershey, Pennsylvania 17033 and its trademark
management subsidiary, Hershey Chocolate & Confectionary Corporation, a Delaware corporation with a
business address of 4860 Robb Street, Suite 204, Wheat Ridge, Colorado 80033 (hereinafter, collectively
referred to as “Hershey”); and Patients Mutual Assistance Collective Corporation d/b/a Harborside Health
Center, a California corporation with an address of 1840 Embarcadero, Oakland, California, 94606
(hereinafter, referred to as “Harborside”). Hershey and Harborside are referred to herein individually as
the “Party” or collectively as the “Parties.”
RECITALS
WHEREAS, Hershey is the exclusive United States licensee of the JOLLY RANCHER®
trademark, which have been used by Hershey in connection with the JOLLY RANCHER® brand products
(hereinafter, “Hershey’s Trademarks”);
WHEREAS, Harborside has utilized Hershey’s Trademarks in connection with the promotion and
sale of marijuana edibles, evidence of which is hereto attached as Exhibit A through Exhibit C (hereinafter,
referred to as the “Products”);
WHEREAS, Hershey has asserted that Harborside has infringed its intellectual property rights in
violation of state and/or federal law by utilizing Hershey’s Trademarks without authorization;
WHEREAS, Hershey agrees, in exchange for the covenants described herein, to not bring litigation
against Harborside for any of the claims it may have at this time;
WHEREAS, Harborside represents and warrants that it has never used Hershey’s Trademarks for
any commercial purpose other than in connection with the Products, and is no longer utilizing Hershey’s
Trademarks in any capacity whatsoever.
NOW, THEREFORE, in consideration of the promises and covenants set forth herein; and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties
agree as follows:
1. PAYMENT. Harborside shall pay Hershey the sum of Twenty Thousand Dollars and Zero
Cents ($20,000.00) to resolve this matter. Payment shall be made payable to The Hershey
Company and sent to Amy Wright with the law firm of Taft Stettinius & Hollister, LLP at
One Indiana Square, Suite 3500, Indianapolis, Indiana 46204.
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2. REPRESENTATIONS AND WARRANTIES. Harborside will never in the future
advertise, sell, manufacture, cause to be manufactured or distribute any products or services
bearing or using Hershey’s Trademarks or any other trademark owned by or licensed to
Hershey or its affiliates, including but not limited to the marks listed in the attached
Exhibit D, or anything confusingly similar to these marks or the trade dresses associated
with these marks, without the prior express written authorization of Hershey. Harborside
further agrees to forward, at its expense, any remaining products, advertisements, other
marketing materials and/or any other infringing items bearing any trademark belonging to
Hershey. Harborside warrants and represents that it will provide Hershey with the identity
of any and all parties with which Harborside has had a business relationship involving the
Products. Harborside further agrees to cooperate in any and all assertions or claims made
by Hershey against any party from or to whom Harborside purchased, sold, imported, or
exported the Products.
3. INTERNET USES. Harborside agrees to immediately discontinue and forever refrain
from using Hershey’s Trademarks, or any other trademark owned or licensed to Hershey,
including any of the marks listed in the attached Exhibit D, or anything confusingly
similar, in any manner whatsoever, including in any meta tags, domain names, keywords,
webpage titles, URLs, social media, or anywhere on or in connection with the internet.
4. SELL OFF PERIOD. There shall be no sell off period.
5. NO LICENSE. Nothing in this Agreement shall be construed to confer a license of any
trademark or trade dress, including Hershey’s Trademarks, or any other form of intellectual
property to Harborside.
6. ACKNOWLEDGEMENT. Harborside hereby acknowledges the validity of Hershey’s
common law and registered trademark rights in Hershey’s Trademarks and shall not seek
to cancel or otherwise dispute or challenge the validity of Hershey’s rights in same.
7. AUTHORITY. The Parties warrant that they have each read this Agreement and have had
time to consider it and have obtained the advice of counsel regarding this Agreement, its
meaning and application, and are signing of their own free will with the intent of being
bound by it. The signers assert that each has full authority to execute this Agreement.
8. FULL AGREEMENT. This Agreement supersedes all prior and contemporaneous
negotiations, agreements, discussions and writings and constitutes the entire agreement
between the Parties with respect to the subject matter thereof.
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9. MODIFICATION. No waiver or modification of this Agreement will be binding upon
either Party unless made in writing and signed by a duly authorized representative of such
Party.
10. CONFIDENTIALITY. The existence of this dispute, information obtained in discovery
related to this dispute, and the terms of this Agreement and any information contained
herein (including amounts paid by Harborside and the total amount paid under this
Agreement) shall be held in strictest confidence by Harborside and its representatives and
shall not be disclosed to any person or entity without the written consent of Hershey, except
as follows: (i) in response to a judicial order compelling disclosure or as may otherwise be
required by law or be necessary to defend or assert claims by or against Harborside in a
judicial proceeding; or (ii) to auditors of or counsel Harborside.
11. BREACH. In the event that any court action is required to enforce the terms of this
Agreement, the prevailing Party shall recover its reasonable attorney’s fees and costs.
Moreover, in the event of any breach of this Agreement, Harborside acknowledges that
mere money damages alone may be insufficient to remedy the damage caused by such a
breach, and consents to the entry of an appropriate injunction or other equitable relief
obtained from a court of competent jurisdiction. Any injunctive relief under this provision
is in addition to any damages sustained by Hershey. Also, if Harborside breaches this
Agreement, Hershey may pursue all claims and causes of action it may have or ever had
against Harborside, as if this Agreement were never executed.
12. JURISDICTION AND VENUE. This Agreement shall be governed by the laws of the
State of Indiana and shall be binding upon the Parties, their officers, directors, partners,
employees, agents, representatives and successors in interest. It is agreed by the Parties that
any such action shall be adjudicated by any court of appropriate jurisdiction located in
Indianapolis, Indiana, and Harborside consents to the personal jurisdiction of said court.
13. STRICT ADHERENCE. The failure of a Party to insist upon strict adherence to any term
or obligation of this Agreement shall not be considered a waiver or deprive that Party of
the right thereafter to insist upon strict adherence to that term or obligation, or any other
term or obligation, of this Agreement.
14. AMBIGUITY. The Parties agree that any ambiguity in this Agreement is not to be
construed against any Party to this Agreement on the grounds that such Party drafted the
Agreement, but shall be construed as if all Parties jointly prepared this Agreement and any
uncertainty or ambiguity shall not on that ground be interpreted against any one party. Any
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4 21312292.1
prior drafts of this Agreement shall not be used to determine the intent of the parties to this
Agreement.
15. LIQUIDATED DAMAGES. The Parties agree that the precise damages caused by a
breach of this Agreement will be difficult to calculate, and as such, the non-breaching Party
shall be entitled to receive Twenty Thousand Dollars and Zero Cents ($20,000.00) as a
liquidated damage, in addition to any reasonable attorneys’ fees and costs incurred to
enforce this Agreement. The liquidated damages are in addition to any other damages the
non-breaching Party may have claim to at law or in equity. The Parties agree that said sum
is a proper measure of the liquidated damages the non-breaching Party will sustain if this
Agreement is breached and the Parties further agree that said sum is not to be construed in
any sense as a penalty.
IN WITNESS WHEREOF, the Parties execute this Agreement, to be effective as of the first date
set forth below.
The Hershey Company
By: ________________________________
Name:
Title:
Date: _______________________________
Patients Mutual Assistance Collective Corporation
d/b/a Harborside Health Center
By: __________________________
Name:
Title: ________________________
Date: _________________________
Hershey Chocolate & Confectionery Corporation
By: _________________________________
Name:
Title:
Date: ______________________________
Case 4:17-cv-07175-KAW Document 1-1 Filed 12/18/17 Page 16 of 33
AMY L. WRIGHT31 7-71 3-3500awriqht@taftlaw. com
October 16,2017
Via CertiJied MailReturn Receipt Req uested70il 2000 0001 3877 5794
Andrew F. Scher, Esq.
Henry G. Wykowski & Associates235 Montgomery St., Suite 657San Francisco, CA 94104
Re: Patients Mutual Assistance Collective Corp. d/b/a Harborside's Unuuthorized Use of theIOLLY RANCHER@ TrademarkRef No. HERI9-00700
Dear Mr. Scher:
Enclosed please find a copy of the settlement agreement regarding Patients Mutual AssistanceCollective Corporation d/b/a Harborside Health Center's (hereinafter, referred to as o'Harboside")
infringement of Hershey's intellectual property rights. As of this date we have not received your responseto same.
Again, our client is willing to enter the enclosed settlement agreement wherein Harborside willagree to permanently discontinue any and all use of the <<TRADEMARKS>>, as well as compensateHershey in the amount of Twenty Thousand Dollars ($20,000.00)for its past unauthorized use. This offershall remain open for acceptance through October 30. 2017. after which time it should be consideredwithdrawn.
Neitherthe contents of this lefter, norThe Hershey Company's election to refrain from action atthis time, should be construed as a waiver, release, relinquishment or election of rights or remedies by TheHershey Company or any of its related entities. The Hershey Company and its related companies expresslyreserve all rights and remedies under all applicable federal and state laws.
right
ALWeblEnclosure
TafUOne lndiana Square, Suite 3500/ lndianapolis, tN 45204-4509
rel: 3 1 7.7 1 3.3s00 / ffi_:l#:l:.:r;
21470932.1
Taft Stettinius & Hollister LLP Chicago/Cincinnati/Cleveland/Columbus/Dayton/lndianapolis/NorthernKentucky/Phoenix
Case 4:17-cv-07175-KAW Document 1-1 Filed 12/18/17 Page 22 of 33
JOLLY RANCHE R@ TrodemarkSETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (hereinafter, the "Agreement") is made and entered as of
the date first written below (the "Effective Date"), between The Hershey Company, a Delaware corporation
with a business address of 100 Crystal A Drive, Hershey, Pennsylvania 17033 and its trademark
management subsidiary, Hershey Chocolate & Confectionary Corporation, a Delaware corporation with a
business address of 4860 Robb Street, Suite 204, Wheat Ridge, Colorado 80033 (hereinafter, collectively
referred to as "Hershey"); and Patients Mutual Assistance Collective Corporation dlblaHarborside Health
Center, a California corporation with an address of 1840 Embarcadero, Oakland, California,94606
(hereinafter, referred to as "Harborside"). Hershey and l{arborside are referred to herein individually as
the "Pafty" or collectively as the "Parties."
RECITALS
WHEREAS, Hershey is the exclusive United States licensee of the JOLLY RANCHER@
trademark, which have been used by Hershey in connection with the JOLLY RANCHER@ brand products
(hereinafter, "Hershey's Trademarks");
WHEREAS, Harborside has utilized Hershey's Trademarks in connection with the promotion and
sale of marijuana edibles, evidence of which is hereto attached as Exhibit A through Exhibit C (hereinafter,
referred to as the "Products");
WHEREAS, Hershey has asserted that Harborside has infringed its intellectual property rights in
violation of state and/or federal law by utilizing Hershey's Trademarks without authorization;
WHEREAS, Hershey agrees, in exchange for the covenants described herein, to not bring litigation
against Harborside for any of the claims it may have at this time;
WHEREAS, Harborside represents and warrants that it has never used Hershey's Trademarks for
any commercial purpose other than in connection with the Products, and is no longer utilizing Hershey's
Trademarks in any capacity whatsoever.
NOW, THEREFORE, in consideration of the promises and covenants set forth herein; and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties
agree as follows:
l. PAYMENT. Harborside shall pay Hershey the sum of Twenty Thousand Dollars andZero
Cents ($20,000.00) to resolve this matter. Payment shall be made payable to The Hershey
Company and sent to Amy Wright with the law firm of Taft Stettinius & Hollister, LLP at
One Indiana Square, Suite 3500, Indianapolis, Indiana 46204.
21312292.1
Case 4:17-cv-07175-KAW Document 1-1 Filed 12/18/17 Page 23 of 33
2.
7.
J.
REPRESENTATIONS AND WARRANTIES. Harborside will never in the future
advertise, sell, manufacture, cause to be manufactured or distribute any products or services
bearing or using Hershey's Trademarks or any other tradernark owned by or licensed to
Hershey or its affiliates, including but not limited to the marks listed in the attached
Ex[![!!p, or anything confusingly similar to these marks or the trade dresses associated
with these marks, without the prior express written authorization of Hershey. Harborside
further agrees to forward, at its expense, any remaining products, advertisements, other
marketing materials and/or any other infringing items bearing any trademark belonging to
Hershey. Harborside warrants and represents that it will provide Hershey with the identity
of any and all parties with which Harborside has had a business relationship involving the
Products. Harborside further agrees to cooperate in any and all assertions or claims made
by Hershey against any party from or to whom Harborside purchased, sold, imported, or
exported the Products.
INTERNET USES. Harborside agrees to immediately discontinue and forever refrain
from using Hershey's Trademarks, or any other trademark owned or licensed to Hershey,
including any of the marks listed in the attached Exhibit D, or anything confusingly
similar, in any manner whatsoever, including in any meta tags, domain names, keyrvords,
webpage titles, URLs, social media, or anywhere on or in connection with the internet.
SELL OFF PERIOD. There shall be no sell off period.
NO LICENSE. Nothing in this Agreement shall be construed to confer a license of any
trademark or trade dress, including Hershey's Trademarks, or any other form of intellectual
property to Harborside.
ACKNOWLEDGEMENT. Harborside hereby acknowledges the validity of Hershey's
common law and registered trademark rights in Hershey's Trademarks and shall not seek
to cancel or otherwise dispute or challenge the validity of Hershey's rights in same.
AUTHORITY. The Parties warrant that they have each read this Agreement and have had
time to consider it and have obtained the advice of counsel regarding this Agreement, its
meaning and application, and are signing of their own free will with the intent of being
bound by it. The signers assert that each has full authority to execute this Agreement.
FULL AGREEMENT. This Agreement supersedes all prior and contemporaneous
negotiations, agreements, discussions and writings and constitutes the entire agreement
between the Parties with respect to the subject matter thereof.
4.
5.
6.
8.
21312292.1
2
Case 4:17-cv-07175-KAW Document 1-1 Filed 12/18/17 Page 24 of 33
11.
9.
t0.
13.
14.
MODIFICATION. No waiver or modification of this Agreement will be binding upon
either Parry unless made in writing and signed by a duly authorized representative of such
Party.
CONFIDENTIALITY. The existence of this dispute, information obtained in discovery
related to this dispute, and the terms of this Agreement and any information contained
herein (including amounts paid by Harborside and the total amount paid under this
Agreement) shall be held in strictest confidence by Harborside and its representatives and
shall not be disclosed to any person or entity without the written consent of Hershey, except
as follows: (i) in response to a judicial order compelling disclosure or as may otherwise be
required by law or be necessary to defend or assert claims by or against Harborside in a
judicial proceeding: or (ii) to auditors of or counsel Harborside.
BREACH. In the event that any court action is required to enforce the terms of this
Agreement, the prevailing Parly shall recover its reasonable attorney's fees and costs.
Moreover, in the event of any breach of this Agreement, Harborside acknowledges that
mere money damages alone may be insufficient to remedy the damage caused by such a
breach, and consents to the entry of an appropriate injunction or other equitable relief
obtained from a couft of competent jurisdiction. Any injunctive relief under this provision
is in addition to any damages sustained by Hershey. Also, if Harborside breaches this
Agreement, Hershey may pursue all claims and causes of action it may have or ever had
against Harborside, as if this Agreement were never executed.
JURISDICTION AND VENUE. This Agreement shall be governed by the laws of the
State of Indiana and shall be binding upon the Parties, their officers, directors, partners,
employees, agents, representatives and successors in interest. It is agreed by the Parties that
any such action shall be adjudicated by any court of appropriate jurisdiction located in
Indianapolis, Indiana, and Harborside consents to the personaljurisdiction of said court.
STRICT ADHERENCE. The failure of a Parfy to insist upon strict adlrerence to any term
or obligation of this Agreement shall not be considered a waiver or deprive that Parly of
the right thereafter to insist upon strict adherence to that term or obligation, or any other
term or obligation, of this Agreement.
AMBIGUITY. The Parties agree that any ambiguity in this Agreement is not to be
construed against any Party to this Agreement on the grounds that such Parry drafted the
Agreement, but shall be construed as if all Parties jointly prepared this Agreement and any
uncertainty or ambiguity shall not on that ground be interpreted against any one parfy. Any
12.
21312292.1
3
Case 4:17-cv-07175-KAW Document 1-1 Filed 12/18/17 Page 25 of 33
prior drafts of this Agreement shall not be used to determine the intent of the parties to this
Agreement.
LIOUIDATED DAMAGES. The Parties agree that the precise damages caused by a
breach of this Agreement will be difficult to calculate, and as such, the non-breaching Party
shall be entitled to receive Twenty Thousand Dollars and Zero Cents ($20,000.00) as a
liquidated damage, in addition to any reasonable attorneys' fees and costs incurred to
enforce this Agreement. The liquidated damages are in addition to any other damages the
non-breaching Party may have claim to at law or in equity. The Parties agree that said sum
is a proper measure of the liquidated damages the non-breaching Party will sustain if this
Agreement is breached and the Parties further agree that said sum is not to be construed in
any sense as a penalty.
IN WITNESS WHEREOF, the Parties execute this Agreement, to be effective as of the first date
set forth below.
15.
The
By:
Hershey Company
Name:
Title:
Date:
Patients Mutual Assistance Collective Corporationd/b/a Harborside Health Center
By:
Name:
Title:
Date:
Hershey Chocolate & Confectionery Corporation
By:
Name:
Title:
Date:
21312292.1
4
Case 4:17-cv-07175-KAW Document 1-1 Filed 12/18/17 Page 26 of 33
Exhibit A
SffiuroslcBD-oo'slGINGER
xELarii,i,L"fijdr F rtrh{
irr St+ r,. [!i 3 Sra !!. t::le.a. Ji3k, \ i[iiiJ Orr,,i,i f],r rlirri.4 M.i i.l C$art:!
RELATED PRODUCTS
-,AYDEI.I.SJUICEICBD LEMONREMEDY(S/I)MCI Oll !.5 OZ ictsD) . 17.55 2gJ 3t{J
I!!,:I f,irl
PPANAIP2ACTIVEIlCMC:i0 qrY
G!!t
21312292.1
*;* $NENU
re
5
Case 4:17-cv-07175-KAW Document 1-1 Filed 12/18/17 Page 27 of 33
Exhibit B
lilI5lueos tcBD-oo's I
STRAWBERRY
ET!i..eF:.! a|?i.t ::.r(^':r:*
| :N- 5uii'.. Lo: n lyru! F i:i.rui SJit.i r;lfrr Or:i.ir F rivn.rr;.::r. M. I .3r I i,iri.ir r_
RELATED PRODUCTS
,IAYOEN'S JJICE ICED LEMON NE!.4gDYI'I)MCI CnL | .5 OZ (CttD) ,
' 7-55-200-340
FlI EIII
PRANAIF2ACI'VEI10MG 30-.il
Flll
21312292.1
ru
6
Case 4:17-cv-07175-KAW Document 1-1 Filed 12/18/17 Page 28 of 33
Exhibit C
llilllrl uros lcBD-oo's ITANGERINE
I*qrrc 0rycs
LnrT:lt aJi.n,. F:n 6,_,.€
qift 5ri.i Co. n ! /ru!. F,:iartt yraler, S.iriil O...r:r I i:.].oriria& r*.ti.3l irlri,t
RELATED PRODUCTS
.,A!JDEN'5 Ji.'ICE i CBDMCT0iL l.5OZ
R$tit
L€FiONREMEDYItT) PRAM Ip2ACL!'[ | 10{c8D}-17-55200-380 MG3CO.TY
E!!i rst
21312292.1
7
Case 4:17-cv-07175-KAW Document 1-1 Filed 12/18/17 Page 29 of 33
Exhibit D
STfl Al,'E}{UEittR iltLIGfiTALl.{O?{D rOY.{ltrEs0ME TWOSOI{EES.KIil{G MELTS3NS OF BRICI{LEEI.'5SSR.EATH SA1ERS
SROOKSIDgB{]B8IE Yl]ML{DBURYL4DS{JRY TH.gME EGG
LA.RA:-IELLO
C.{R.EFREETHOCCIL{TE l,Y8RLDDAGOBADAIRY lKIILKFAST EREAKGOLDEH AL:\.IOI'{D
GOOD & tr{Efi.YGOOD & Ffi.UITYGOOD & Pi.E$TYHEATI{I{ERS}iEYSHER.sI{ETS EL]sSHERSilEY-ETSI{UG5}IUGS & KISSSS
ICE BRE,{I{Efi.SIfE Bfi.EAKE&5 ICE CUESS
ICE CUSES
IOLLY HSNIIIER.irrssEsn{IT I(ATITfiACT(EI-
I{AA}"EL{il{C4,5'ERLORE?{AMILI( DUDSlIilxisxlAltE}IOUil,IDS3''IR. GOODBAR!*IB5}$I.}Tfu{GEOUSPAYDAYPEL{i\*AZO
PELONPELOI{ PEN"O RNCB
PELONETAPELONETESPICOSTTOS
POT OF GOTDPULI.':{'PEEL&TLLYRSESE'SREESE'S PlECES
ROLO
ROYAL DARK5CHNfl^FFE?{ EER.GER
SIMPLE PLE,4,SUfi.ES
SI{OR
SOFIT
SPECL{L DARKSITIPHOI{YTAITE5
TI1IIUZLERSIIIHATCHA}TAC{LLtrTllJHOPPER.5
YORKYOUl-lG &S:{1'I-XEL{G:$UTZER.O
Orange in c,rnnecti,r* u.ith productscontaining pearrut butter or characterized b1.
pea}}ut butter tlaYor
21312292.1
8
Case 4:17-cv-07175-KAW Document 1-1 Filed 12/18/17 Page 30 of 33
EvokeLaw,PC244CaliforniaSt.,Suite507
SanFrancisco,[email protected]•415.398.3141
Trademark&CopyrightLaw
FOR SETTLEMENT PURPOSES PURSUANT TO FRE 408 AND CAL. EVIDENCE CODE 1152
June 21, 2017
VIA EMAIL ([email protected]) Ms. Amy L. Wright Taft Stettinius & Hollister LLP One Indiana Square, Suite 3500 Indianapolis, IN 46204
Re: Harborside JOLLY RANCHER Trademark
Dear Ms. Wright:
Pursuant to your letter dated June 9, 2017, Harborside responds to Hershey’s requests:
1. Harborside is in the process of gathering the requested gross profits information.
2. Harborside no longer possesses any infringing items. Harborside has relabeled the products and destroyed and disposed of the infringing labels. As you can imagine, the labels once removed were a “heaping mess.” A declaration affirming the same is attached as Exhibit A.
In consideration for Harborside’s cooperation, please confirm that Hershey will not take further action against Harborside in connection with this matter. Once this is confirmed, Harborside with promptly send over its gross profit information. Nothing in this letter should be construed as an admission of liability, wrongdoing, or as a waiver of Harborside’s rights or defenses, all of which are expressly reserved. Please contact us if you have any questions.
Sincerely,
Mary L. Shapiro
Case 4:17-cv-07175-KAW Document 1-1 Filed 12/18/17 Page 32 of 33
JS-CAND 44 (Rev. 06/1 7) CIVIL COVER SHEETThe JS-CAND 44 civil cover sheet and the information contalned herern nerther replace nor supplement the filing and service ofpleadings or other papers as required by law.
Court to initiate the civil docket sheet. (szr 1r'r'.srRt/C uiiNs oN NF,ft pAGt or L'ats Foau..1
I. (a) PLAINTIFFSPATIENTS MUTUAL ASSISTANCE COLLECTIVE COMORATION. dbaHARBORSIDE HEALTH CENTER
(b) County ofResidence ofFirst Listed Plaintiff ALAMEDA(EXCL'PT IN I I,S, PI.AINTIFI'I'ASES1
..(C) 3n-orneys .tFtrm Name. Address. aml telephone NumberlHdnry G. Wykoivski, Esq.Wykowski & Associates; 235 Montgomery St., Suite 657San Francisco, CA 94104
II. BASIS OF ruRISDICTION ri,r,,",, in One Box Only)
I U.S. Govement Plaintiff X 3 Federal Qumtion(U.5. Government Not o Parqt)
2 U.S. Govement Defendmt 4 Divereitv(tndicaet'itizenship ofPorties in tten ltl)
IV. NATURE OF SUIT il'loce an "-Y" in Ona Box Onll'1
DEFENDANTSTHE HERSHEY COMPANY and HERSHEY CHOCOLATE &CONFECTIONARY CORPORATION
County of Residence of First Listed DefendantIIN I'-S- PI,AINTII.'I: CASES ( )NI.Y)
NOTE: IN LAND CONDEMNATION CASES. USE THE LOCATTON OFTHE TRACT OF LAND INVOLVED.
Attomeys (lf Knov'n)
III. CITIZENSHIP OF0.or Ditersiry- ('ases 0nly)
Citizn of This State
Citizen of Another State
Citizen or Subject ofaForeign Comtry
PRINCIPAL PARTIES (l'lace an X" in One l)oxfor t'lainrrfand One Box for Defendont)
DEF PTF DEFI Incorpomted or Principal Place 4 4
ofBusiness In This State2 Incorpomted and Principal Place 5 5
ofBusiness In Another State3 Foreign Nation 6 6
PTFI
2
3
CONTRACT
V. ORIGIN ft'lace an "X" in One Rox Only)
X I Origrnal 2 Removed fromProceeding State Court
3 Remmded fromAppellate Court
4 Reinstated orReopened
5 Trmsfened lromAtothet District (s pec rfl )
.TUTES
6 Multrdistrict 8 MultidistncrLitigation-Tmsfer LitigationDirectFile
OTHER STAI l0 Insumce
120 Marine
130 Miller Act
140 Negotiable [nstrument
150 Recovery ofOverpayment OfVetem's Benefits
l5l Medicre Act
152 Recovery of DefaultedStudent Loms (ExcludesVeterms)
153 Recovery ofOverpayment
of Veterm's Benefits
160 Stockholders' Suits
190 Other Contract
195 Contract Product Liability
I96 Fruchise
RIATPROPERTY
210 Lmd Condemation
220 Foreclosue
230 Rent Lease & Ejectment
240 Torts to Lmd245 Ton Product Liability
290 All Other Real Property
3 I 5 Airplane Product Liability
320 Assault, Libel & Slmder330 Fedeml Employers'
Liability340 Marine
345 Marine Product Liability
350 Motor Vehicle
355 Motor Vehicle ProductLiability
360 Other Permnal Injury
362 Pmonal Injuy -MedicalMalpractie
Liability
367 Health Cue/Phamaceutical Permnallnjury Product Liability
368 Asbestos Personal InjuryProduct Liability
PERSONAL PROPERTY
370 Other Fraud
371 Truth in Lending
380 Other Personal PropertyDamage
385 Property Damage ProductLiability
PERSONAL INJURY Pf,,RSONAL INJURY
310 Airplme 365 Personal Injury- Product
625 Drug Related Seiare ofProperty 2l USC $ 881
690 Other
422 Appedl 28 USC li 158
423 Withdrawal 28 USCs 157
375 False Claims Act
376 Qui Tm (31 USCg 372e(a))
400 State Reapponionment
410 Antitrust
430 Bmks md Bmking
450 Comerce460 Deportation
470 Racketeer lnfluenced &Compt Orgmizations
480 Consumer Credit
490 Cable/Sat TV
850 Secwities/CommoditieVExchmge
890 Other Statutory Actions
891 Agricultural Acts
893 Enviromental Matten
895 Freedom of InfomationAct
896 Arbitration
899 Administrative hmdreAct,/Review or Appeal ofAgency Decision
950 Constitutionality of StateStatutes
L,{BOR PROPERTY RIGHTS
710 Fair Labor Studtrds Acr
720 Labor/MmagementRelations
740 Railway Labor Act751 Fmily and Medical
Leave Act
790 Other Labor Litigation
791 Employee RetirementIncome Secuity Act
820 Copyrights
830 Patent
83 5 Patent-Abbreviated NewDrug Application
X840 Trademtrk
SOCIAL SECURITY
861 HrA (1395tr)
862 Black Lug (923)
863 DIwCiDIww (40s(g))
864 SSID Title XVI865 RSI (405(s))
IMMIGRATTON
CIVIL RIGHTS PRISONER PETITIO!'aS 462 NatrraliationApplication
465 Other ImigrationActions
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/Accomodations
445 Amr. w/DisbilitisEmployment
446 Amq. w/Disabilities-Other
448 Education
HABEAS CORPUS
463 Alien Detainee
510 Motions to VacateSentence
530 Geneml
535 Death Penalty
OTHER540 Mmdmus & Other
550 Civil Rights
555 Prison Condition
560 Civil DetainerConditions ofConfinement
FEDERAL TAX SUITS
870 Tues (U.S. PlaintifforDefendmt)
871 IRS-Third Party 26 USC$ 7609
vI. CAUSE OFACTION
Cite the U.S. Civil Statute under which you are filing (Do not cite iurbdictioml statutes unl6s divenitv)28 U.S.C $ 22ol
Brief descrintion of cause:
Declaratory Relief
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTIoNCOMpLAINT: UNDER RULE 23, Fed. R Civ P
DE\'t.{\D S CHECK YES only if demanded in complaintJtrRY DEMAND: X Yes No
vlrr. RELATED CASE(S),IF ANY (See msrmuions).
JUDGE DOCKETNUMBER
IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2)(Place an "X" in One Box Only) X SAN FRANCISCO/OAKLAND SAN JOSE EUREKA-MCKINLEYVILLE
DArE nfrf/f Z SIGNATURE OF ATTORNEY OF RECORD
TORTS
Case 4:17-cv-07175-KAW Document 1-2 Filed 12/18/17 Page 1 of 1